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Search This? During a Lawful Arrest, Police Can Search Your Cell Phone Without A Warrant

May 13, 2011

As of January 2011, if the police are lawfully arresting you in California they can search your cell phone without a warrant. This includes all of your cell phone contents—texts, voicemails, photos, videos, your list of contents and recent calls, plus any email and online services or apps you may subscribe to via your phone.

In January 2011, the California Supreme Court affirmed the Court of Appeal holding that an unwarranted police search of a cell phone text message folder during a lawful arrest for sale of ecstasy was constitutional. The way this went down was that police arrested the defendant after an informant who had been wearing a wireless transmitter purchased ecstasy from him. Upon arresting the defendant, police seized his phone and took him to the sheriff’s station where they interviewed him without an attorney present (he did not assert his right to an attorney!). The defendant denied having knowledge of the drug transaction. After the interview, police checked his cell phone texts and pulled up the message “6 4 80.” The police showed the defendant this message, told him they interpreted it as a price quote, and he then admitted to participating in the sale.

The defendant was charged with selling a controlled substance (Health & Safety Code, Section 11379(a)), a felony. He pleaded not guilty and moved to suppress the fruits of the cell phone search, arguing that the warrantless search was remote in time relative to his arrest (90 minutes), and therefore violated the Fourth Amendment. The trial court denied the defendant’s motion, the Court of Appeal affirmed, and the Supreme Court of California also affirmed.

The Court’s reasoning was this: the cell phone was immediately associated with the defendant’s person, like an item of clothing or a cigarette package, and therefore, upon lawfully arresting the defendant, the police were entitled to inspect the cell phone’s contents without a warrant. Unwarranted searches are generally unreasonable and violate the Fourth Amendment, however, there is an exception that allows police to conduct a warrantless search of the person and the area in the arrestee’s immediate control when carrying out a lawful arrest. That exception has traditionally been justified by the idea that police have a right to search for weapons that may be used against them, or for instruments of escape, or for evidence that may be concealed or destroyed. It is under this exception that police are allowed to confiscate personal clothing and items “immediately associated with the defendant’s person” for traces of evidence. The California Supreme Court held that a cell phone is immediately associated with the defendant’s person, and that the police were therefore entitled to inspect its contents without a warrant at the sheriff’s station 90 minutes later, whether or not an exigency existed.

Note, the Court did not say that the police can search your cell phone at any time or for any reason, only that the police can search your cell phone as a search incident to a lawful arrest. That means that the police must be lawfully arresting you—they must have a warrant or probable cause to conduct the arrest. If the police are lawfully arresting you and show you the contents of your cell phone to get you to answer their questions or make a statement, don’t be like the defendant in the case that went to the California Supreme Court! Call an experienced defense attorney before you answer any questions by the police other than providing your name and identification.

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